The Procter & Gamble Company v. Team Technologies, Inc.

Filing 79

ORDER DENYING DEFENDANTS MOTION FOR PARTIAL RECONSIDERATION OF THE ORDER ON CLAIM CONSTRUCTION (Doc. 73 ). Signed by Judge Timothy S. Black on 2/10/2014. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THE PROCTER & GAMBLE COMPANY, :
:
Plaintiff,
:
:
vs.
:
:
TEAM TECHNOLOGIES, INC., et al.,
:
:
Defendants.
:

Case No. 1:12-cv-552
Judge Timothy S. Black

ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL
RECONSIDERATION OF THE ORDER ON CLAIM CONSTRUCTION (Doc. 73)
On November 22, 2013, upon consideration of the parties’ briefs submitted in
support of their proposed claim constructions, and after oral argument, this Court entered
its Order on Claim Construction. (Doc. 71).
This civil action is now before the Court on Defendants’ Motion for Partial
Reconsideration of the Order on Claim Construction and Plaintiff’s responsive
memorandum. (Docs. 73 and 75). Defendants did not file a reply in support of their
motion.
I.

STANDARD OF REVIEW

District courts have authority under both common law and Rule 54(b) to
reconsider interlocutory orders and to reopen any part of a case. Rodriguez v. Tennessee
Laborers Health & Welfare Fund, 89 Fed. Appx. 949, 959 (6th Cir. 2004). Nevertheless,
“motions for reconsideration are disfavored.” Davie v. Mitchell, 291 F.Supp.2d 573
(N.D. Ohio 2003). Thus, “courts will [only] find jurisdiction for reconsidering

interlocutory orders where there is (1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent manifest injustice.”
Louisville/Jefferson County Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir.
2009). Here, Defendants seek reconsideration “to correct clear error and prevent
manifest injustice.”
II.
A.

ANALYSIS

“Permanent deformation”
Defendants seek reconsideration of the claim construction Order as it relates to the

term “permanent deformation.”
Defendants claim that the Court committed a clear error of law when it determined
that “the [permanent deformation] claim language merely requires that the strip not
permanently deform to the shape of the teeth, not that it not permanently deform at all.”
(Doc. 71 at 7; Doc. 73 at 2-3). Defendants argue that this is an “improper importation of
language into claims.” (Doc. 73 at 3). In their motion, Defendants summarize the
evidence and analysis that Defendants believe was “clearly erroneous” for the Court to
rely on in construing this term. (Id. at 3-5). Plaintiff correctly points out, however, that
Defendants rely exclusively on arguments they have either already made or that they
could have made prior to the Court’s Order.
Nevertheless, to be clear, this Court found that Plaintiff showed that the intrinsic
record establishes that the deformation limitation applies only to “a shape of a tooth.”
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(Doc. 71 at 7). The Court acknowledged Defendants’ contention that “conform” and
“deform” must mean different things in the context of the patents-in-suit, but rejected
that argument as “ignor[ing] the claim language and import[ing] extraneous limitations
to require that the strip undergo no irreversible alterations.” (Id.) Although Defendants
argue that the words “shape of a tooth” appear only in claim 1 of the ’017 patent, in
reality, three of the other claims state that the strip of material is “conformable to tooth
surfaces.” Plaintiff evidenced that throughout the intrinsic record, the permanent
deformation limitation was directed to permanent deformation in the shape of a tooth,
not just any permanent deformation. (Doc. 66 at 26-30; Doc. 68 at 6-9).
Upon careful review, the Court finds no evidence of clear error or manifest
injustice with regard to its construction of the claim term “permanent deformation.”
B.

“folding a second portion of the strip of material and tooth bleaching
composition about the incisal edges of the plurality of adjacent teeth”
Defendants next seek reconsideration of the Court’s construction of the claim term

“folding a second portion of the strip of material and tooth bleaching composition about
the incisal edges of the plurality of adjacent teeth.”
Defendants claim that the Court committed a clear error of law when it determined
that “[i]f the claim language Defendants are directly incorporating into their construction
is unambiguous and does not require further explanation in and of itself, then Plaintiff is
correct and construction is unnecessary.” (Doc. 71 at 17-18; Doc. 73 at 6). Defendants
argue that it is not necessary for claim construction to “replace the terms in dispute with
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new terms” and that it “can be used to further elucidate the meaning of disputed terms
through explanation, rather than by replacing words.” (Doc. 73 at 6). In their motion,
Defendants summarize the evidence and analysis Defendants feel was “clearly
erroneous” for the Court to rely on in construing this term. (Id. at 6-9).
Again, Plaintiff correctly points out that Defendants rely exclusively on arguments
they have either already made or that they could have made prior to the Court’s Order.
The only new argument that Defendants raise with regard to this claim term is the
contention that Plaintiff and the Court misunderstood their proposed construction of this
term. (Id. at 6). Defendants claim that Plaintiff and the Court incorrectly interpreted the
ellipsis in Defendants’ proposed construction to refer to all of the omitted words in the
claim term. (Id. at 6-7). Defendants claim they intended their proposed phrase “in order
not to cover the tips of the canine teeth” to replace the words “about the incisal edges of
the plurality of adjacent teeth” in the claim term, rather than merely being added on after
it. (Id. at 7). However, Defendants waived this argument by not raising it at the
appropriate time, and, further, Defendants have not presented any justification for their
failure to do so. Plaintiff made its understanding of Defendants’ proposal crystal clear in
its briefs and at the Markman hearing, and Defendants did not correct it nor mention this
alleged intended construction at any point. (Doc. 66 at 41-46; Doc. 67 at 15-17; Doc. 68
at 19-20; Doc. 69 at 14-17; Doc. 72 at 104-20).

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Moreover, this Court found that Plaintiff showed that this claim term is clear on its
face and needs no construction. (Doc. 71 at 17-18). The Court considered whether the
claimed invention should be limited to those embodiments that do not cover the tips of
the canine teeth and found “there is no patent language to this effect” and that
“[d]iscussions of specific embodiments that do not fold over the canines do not amount to
a mandate that in no embodiment must the strip ever do so.” (Id. at 18). Further, in
resolving the parties’ dispute as to whether “incisal edges” incorporates the tips of the
canine teeth, the Court found that Plaintiff demonstrated that “incisal edges are indeed
found on canine teeth according to the Oxford English Dictionary.” (Id.) Defendants do
not attempt to show that this finding was clearly erroneous.
Upon careful review, the Court finds no evidence of clear error or manifest
injustice with regard to its construction of the claim term “folding a second portion of the
strip of material and tooth bleaching composition about the incisal edges of the plurality
of adjacent teeth.”
III.

CONCLUSION

Accordingly, for the reasons stated here, Defendants’ motion for reconsideration
(Doc. 73) is hereby DENIED.
IT IS SO ORDERED.
Date: 2/10/14

/s/ Timothy S. Black
Timothy S. Black
United States District Judge
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